TMI Blog2016 (4) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been retracted, however, there has been no effort on the part of respondents to fulfill the requirement of Rule 9(5) by proving the receipt of goods by them in terms of Rule 9(5) of the Cenvat Credit Rules. The Commissioner (Appeals) has wrongly placed the onus on the Revenue to establish that the goods have not been received. Therefore, the impugned order to that extent is set aside and for establishing the receipt of goods in terms of Rule 9(5) of the Cenvat Credit Rules , the matter is remanded back. Imposition of penalty - Rule 15/15(2) of the CCR, 2004 read with Section 11AC of the Central Excise Act, 1944 - Held that:- by following the decision of Hon'ble Bombay High Court in the case of Ashok Kumar H Fulwadhya [2010 (1) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponsibility is only on the department to take the investigation to a logical conclusion. In the light of this, the Commissioner (Appeals) examined the evidences produced by the Revenue to assert that the material was not received by the appellant and, therefore, credit is not admissible. After examining the evidences, the Commissioner (Appeals) held that evidence is not sufficient to prove that the goods have not been received. With respect to penalties imposed under Rule 15/15(2) of Cenvat Credit Rules, 2004 read with Section 11AC, the Commissioner (Appeals) observed as follows:- 8.3 From the above rule, it is very clear that only the manufacturer shall be liable to pay penalty in terms of provisions of Section 11AC of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued that the onus of establishing that the goods were received in the factory is placed on the person who has taken the credit. He argued that it is not the responsibility of the Revenue to establish that the goods were not received. Learned AR also argued that the penalty has rightly been imposed under Rule 15/15(2) read with Section 11AC in view of the grounds of appeal. 3. Learned Counsel for the respondents argued that it is responsibility of the Revenue to establish that the goods have not been received and they have failed to do so as has been observed by the Commissioner (Appeals). It was argued by learned Counsel that penalties under Rule 15 cannot be imposed on any person other than the person who has availed the credit. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) has wrongly placed the onus on the Revenue to establish that the goods have not been received. Impugned order to that extent is set aside and the matter is remanded to the original adjudicating authority to examine afresh giving an opportunity to the respondents to establish the receipt of goods in terms of Rule 9(5) of the Cenvat Credit Rules. The respondents will be free to produce all the evidences they have. 5. In so far as penalty on other respondents is concerned, it is seen that the same has been imposed under Rule 15/15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. The Hon'ble Bombay High Court in its order in case of Ashok Kumar H Phulwadhya (supra) has observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . on the Company, who is a manufacturer. The petitioners cannot be said to be manufacturer availing Cenvat credit. They are the directors of the private limited company as such they could not have been within the net of Rule 13 of the Cenvat Rules. Rule 15 of the Cenvat Credit Rules read exactly the same as Rule 13 of the Cenvat Credit Rules which was examined by the Hon'ble Bombay High Court. 6. Respectfully following the decision of Hon'ble High Court, the penalties imposed under Rule 15/15(2) of the Cenvat Credit Rules on other respondents are set aside. Appeals No. E/522, 524, 525, 526 527/09 are dismissed. In respect of Appeal No. E/523/09, the order of Commissioner (Appeals) is set aside and the matter is remanded on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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